Day-to-day Practices to Promote Litigation Success

Most people avoid litigation like the plague, and for good reason. Litigation can be expensive and risky. We lawyers are pretty cool people, but, let’s face it, you only want to spend so much time with us.

Even though you may have a thoughtful and well-intentioned aversion to litigation, you still could find yourself in a lawsuit, forced to resolve an important issue in your life through the courts.

After more than fifteen years of representing people and business in litigation, I’ve identified the following tips that I believe will help you realize the best possible outcome in your case. Winning is never guaranteed, but your odds improve significantly if you’ve done your homework along the way.

1. “Document” is a verb

A sound personal and business practice is to document things as they unfold. To win a case, you must be able to recreate a series of events in a way that supports your position. In fact, sometimes the party who best preserved history wins. You may have done everything right, but if you have no way of recalling what you did or proving it, those correct decisions may not lead to the result you wish. So, tip number one: preserve important moments and decisions in your life and business so that you can prove what happened and when. Write it down, type it up, or snap a photograph of a document or thing.

This may sound tedious or burdensome, but in this era of digital technology, it is not. You can use cell phones, email, and digital cameras to capture data and hold it indefinitely. Develop a habit of preserving documents, images, messages, and conversations that you think might be important down the road. Once you master the learning curve of understanding the technology available to you, the rest of the process is quite manageable and can become conveniently habitual.

2. Know your responsibilities

As a general matter, you are held to two sets of obligations under the law: those created by the law and those created by you through your agreements (“contracts”) with others.

Knowing this, make it a practice of putting every agreement you make in writing, and keeping a signed copy of that writing a few keystrokes away. Putting your agreements into writing eliminates most disputes about what the agreement was, and written agreements are far easier to litigate than oral agreements (keeping in mind that some agreements aren’t even enforceable unless they are put into writing—a topic for another blog post).

Then, if and when any dispute arises, all you need do is pull out your agreements and immediately evaluate your commitments and entitlements under the document. In litigation, a judge or jury is required to enforce an agreement as the parties formulated it, so your agreements should guide your course as you contemplate your position.

3. Act reasonably

As mentioned above, in addition to the agreements you make, the law requires you to act in a particular way at times. In most instances, you are required by law to act reasonably—to do what a thoughtful, reasonable, prudent person would do under those circumstances. So, if you are unsure how to proceed, evaluate your situation and determine what a thoughtful, reasonable, prudent approach would be—one that those thoughtful responsible people you admire would choose. The easiest positions to defend are ones that most people would have chosen.

4. Clean up messes

There are times when a single event or choice can have catastrophic effects. In those times, particularly when that event or choice was caused entirely by another person, you may have the desire to walk away from the mess and move toward litigation. However, the law requires you to mitigate any harm caused by another person—to make the best of a situation and to salvage whatever you can. Sometimes that isn’t reasonable or affordable, but the law doesn’t allow you to sit back and do nothing. If a faulty piece of equipment causes a refrigerated warehouse to get warm, even if you did nothing wrong, you can’t let an entire warehouse full of food go bad if you could have salvaged its contents.

5. Make timely, sound legal decisions

And finally, there will be a point at which important legal decisions need to be made. Sometimes those decisions are how to advance strategically. Sometimes those decisions are about how to retreat. And sometimes those decisions are about litigation strategy—whether to file a lawsuit, when to file a lawsuit, where to file a lawsuit, and who should be involved in a lawsuit. These decisions require thoughtful deliberation, and they must be timely in order to have their greatest value. Be attentive to those moments. Watch for them, and act when needed.

These five things may sound simple, but you would be amazed at how far these five tips can take you in litigation. You also would be amazed at how often people fail at these tasks and the sometimes ruinous consequences that can result. 

For more information contact a member of Barrett McNagny's Litigation Services group.